The Attorney General of Texas
JIM MATTOX December 29, 1983
Attorney General
Supreme Court Building Mr. Mark G. Goode Opinion No. JM-105
P. 0. Box 12548 Engineer-Director
Austin, TX. 78711. 2548 Whether a community
Department of Highways and Re:
512/475-2501
Telex 9101874-1367
Public Transportation antenna or television service
Telecopier 512/475-0266 P. 0. Box 5075 may be reimbursed under article
Austin, Texas 78763 bb74w, V.T.C.S., for the cost
of relocation of its facilities
714 Jackson, Suite 700
where such relocation is
Dallas, TX. 75202.4506
2141742.8944 necessitated by highway con-
struction
4824 Alberta Ave., Suite 160 Dear Mr. Goode:
El Paso, TX. 79905.2793
9151533.3484
You have asked the following question:
,-I Texas, Suite 70-l Can a person in the business of providing a
.Aous,cm, TX. 77002-3111 community antenna or cable television service to
71312235886 the public be reimbursed under article bb74w-4,
V.T.C.S., for the cost of adjustment or relocation
606 Broadway, Suite 312
of the facilities where such relocaeion or
Lubbock, TX. 79401-3479 adjustment is necessitated by Interstate Highway
8061747.5238 construction when such person has no property
interest in the existing location of such
4309 N. Tenth. Suite B
facilities?
McAllen, TX. 78501-1885
5121682-4547 Article bb74w-4 provides, in pertinent part:
Whenever the relocation of any utility
200 Main Plaza. Suite 400
San Antonio, TX. 78205.2797
facilities is necessitated by the improvement of
51212254191 any highway in this State which has been or may
hereafter be established by appropriate authority
according to law as a part of the National System
An Equal Opfwriunityl of Interstate and Defense Highways, including
Affirmative Action Employer
extensions thereof within urban areas, such
relocation shall be made by the utility at the
cost and expense of the State of Texas provided
that such relocation is eligible for Federal
participation.
The statute defines "utility" to include
publicly, privately, and cooperatively owned
utilities engaged in furnishing telephone,
p. 441
Mr. Mark G. Goode - Page 2 (JM-105)
telegraph, communications, electric, gas, heating,
water, railroad, storm sewer, sanitary sewer or
pipeline service.
The relevant federal statute, 23 U.S.C. section 123, provides:
(a) When a State shall pay for the cost of
relocation of utility facilities necessitated by
the construction of a project on the Federal-aid
primary or secondary systems or on the Interstate
System, including extensions thereof within urban
areas, Federal funds may be used to reimburse the
State for such cost in the same proportion as
Federal funds are expended on the project.
Federal funds shall not be used to reimburse the
State under this section when the payment to the
utility violates the law of the State or violates
a legal contract between the utility and the
State. Such reimbursement shall be made only
after evidence satisfactory to the Secretary shall
have been presented to him substantiating the fact
that the State has paid such cost from its own
funds with respect to Federal-aid highway projects
for which Federal funds are obligated subsequent ,T,
to April lb, 1958, for work, including relocation
of utility facilities.
(b) The term "utility", for the purposes of
this section, shall include publicly, privately,
and cooperatively owned utilities.
Thus, the federal statute apparently permits the states to determine
which "utility" costs will be reimbursed. As a result, if a community
antenna or cable television service engages in the business of
"furnishing . . . communications . . . service," its cost of
relocation may be reimbursed under article bb74w-4.
In our opinion, it is clear that a community antenna or cable
television service engages in the business of "furnishing
communications service." "Communication" is defined in article 9019,
V.T.C.S., a statute which imposes penalties for interception of
communication, as
speech uttered by any person and any information
including speech transmitted in whole or in part
with the aid of wire or cable.
In Independent Theatre Owners v. Arkansas Public Service Comm'n, 361
S.W.2d 642 (Ark. 1962). the court held that a television cable service ?
provides a telephonic or telegraphic communication service. See
Attorney General Opinion C-702 (1966). We conclude that a community
p. 442
. -
Mr. Mark G. Goode - Page 3 (JM-105)
antenna or cable television service engages in the business of
furnishing communications service and thus, its cost of relocation may
be reimbursed under article bb74w-4.
It has been suggested that Senate Bill No. 643, Acts 1983,
Sixty-eighth Legislature, chapter 556, at 3234, requires a different
result. We disagree. This bill requires a utility which damages a
road to "bear the expense of repairing" it. It applies only to
"unincorporated area[s] of the state" and to "state highway[sl or
county road[sl." As to such highways, the person providing the
utility service must "bear the cost of repairing a state highway or
county road damaged by a relocation." Article bb74w-4, on the other
hand, is applicable not to state highways, but only to those highways
designated as part of the interstate highway system.
SUMMARY
A person in the business of providing a
community antenna or cable television service to
the public may be reimbursed under article
bb74w-4, V.T.C.S., for the cost of adjustment or
relocation of the facilities where such relocation
or adjustment is necessitated by interstate
highway construction.
-J=$tf&&
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 443